Robert Bork’s Warped Constitutional Ideas

I wrote the other day about the fact that Robert Bork chairs Mitt Romney’s legal advisory committee and will apparently have a role, along with Jay Sekulow, in helping him pick nominees to the federal courts if he is elected president. Someone suggested more detail on Bork’s insane ideas about the constitution, so I thought I’d reprint an old post I wrote 8 years ago on the subject that includes direct quotes from Bork’s law review writings:

The primary thing that sticks out in my memory about the entire affair was how surprised I was that Bork was continually referred to as a pre-eminent legal scholar even by his political opponents like Lawrence Tribe and the Democrats on the Senate Judiciary Committee. After reading literally a few thousand pages of his writings, Bork struck me as anything but a sophisticated legal theorist. The contradictions and shortcomings in his thinking were so obvious to me, even as an amateur, that I was astonished to hear him praised so effusively by those who surely agreed that Bork’s judicial philosophy was shallow at best and downright dangerous at worst. Purely on the basis of his resume, he was certainly more qualified than almost anyone else who had ever been nominated for the Court – Yale law professor, Solicitor General of the United States under Nixon, Appeals Court judge. His resume and credentials were impeccable. Still, I think the nation dodged a metaphorical bullet when his nomination was voted down by the Senate. Let me explain at least part of the reason why….

One of the most important judicial decisions in history was Griswold v Connecticut. The case involved a state law which forbid the purchase, possession or use of contraception even by married couples in the state of Connecticut. In 1965, that law was challenged and the Supreme Court agreed with them and struck it down as a violation of the basic right to privacy guaranteed by so many provisions of the Bill of Rights. Bork was one who railed against that decision, as he railed against virtually all of the Supreme Court decisions of the last half century that expanded the sphere of various protections either specifically stated or implied by the Bill of Rights. His argument was fairly straightforward – nowhere in the bill of rights does it specify any “right to use contraception”, and therefore the government has the authority to prohibit it. The crux of the argument is that anything not specifically stated the bill of rights is not to be considered protected from government coercion. But is this true in our constitutional system? Certainly not in the system that the founders intended.

One of the great arguments that took place among the founders was over the need for a Bill of Rights. Some argued that it was not enough merely to limit government through such provisions as the checks and balances and separation of powers inherent in the governmental structure that the constitution provided. It should be set out in no uncertain terms, they said, not just what the government may do – the authority granted to the government – but also what the government may not do. Others countered that by specifying only certain rights, it would leave the impression that anything not specified would be fair game for the government to regulate or prohibit. James Madison, during the deliberations on the framing of the Bill of Rights, proposed the 9th amendment specifically to allay such fears. He introduced the proposed 9th amendment by saying:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].

This amendment passed both the House and the Senate with virtually no opposition, and little change in wording, and the final version of the 9th amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Bork renders this amendment, with such clear intent behind it, completely meaningless in his judicial philosophy. How does he do so? By setting up an almost surreal dichotomy between the desire of an individual to be free and the desire of another individual or group of individuals to deny them freedom. He sets this out in an Indiana Law Journal article in 1971, stating:

“Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups…why is sexual gratification more worthy than moral gratification?

Well Mr. Bork, there is a very obvious reason why the first “gratification” is more worthy than the second – because the first “gratification” involves only control of one’s own choices and actions, while the second involves the control of someone else’s choices and actions. But Bork sets up a bizarre and tortured equivalence between the two desires, arguing that “No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.” This is truly an irrational statement, but no more irrational than many others made by Bork in that same article. For example, his views on freedom of speech would dramatically scale back the protections afforded by the first amendment. He writes:

“Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.”

Imagine a country governed under Bork’s judicial philosophy. Calls for civil disobedience, the basis of the entire civil rights movement in the United States, could be punished. Publishing scientific theories or papers that the government objects to would have no constitutional protection whatsoever and the scientist could be imprisoned for offering an explanation that the government finds objectionable (Galileo, anyone?). There would be no right to publish any book or magazine, or give any speech that was not explicitly political. And this from the mind of a man that was allegedly an eminent legal scholar? I beg to differ. Bork’s legal philosophy amounted to little more than a continual apology for authoritarian government and a dramatic limitation on the rights of conscience considered sacrosanct by Jefferson and Madison. Had Bork been confirmed to the Supreme Court, there would have been much spinning in the graves near Monticello.

“No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

This is why I have stopped caring if a subject of conversation might be offensive in a public place like Facebook, the bus, work where appropriate. Everyone can be offended by almost anything. Offense if where opposition begins and what matters is if the offense if warranted or not. When I start talking sources and quotes my relatives have started shutting up.

slc1

The fact that Romney is even listening to a nutcase like Bork is reason enough to keep him out of the White House.

http://howlandbolton.com richardelguru

What the Hell is “moral gratification” but the most blatant schadenfreude?

Trebuchet

And once again, because it bears repeating, this is why it is absolutely imperative for thinking people to vote for Obama in the fall, no matter how disappointed they may be about his various failings, such as enumerated in the previous post. Justices appointed by a President Romney are likely to serve for 20-30 years, and set the country back by a hundred.

fastlane

So, his idea of the constitution is, dare I say, Borked?

Thank you…I’ll be here all week.

Michael Heath

Bob Bork:

No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.

Ed’s reaction:

This is truly an irrational statement

Laying aside Mr. Bork’s failure in acknowledging the existence of the 9th, along with Ed being right this is an irrational argument, there is a kernel of a point here. That is that given our rights our inalienable, we do frequently confront policy and constitutional debates which revolve around competing rights. Where it’s common for the media to fail to realize this fact or, don’t sufficiently compare the two.

Consider gays fighting to fully exercise their marriage rights. An increasing argument we’ve encountered in the states where gays are in the process of getting those rights secured is conservative Christians claiming this will allow gays out of the closet which will in turn make them look even more like bigots, and where they also dishonestly argue their kids will increasingly catch ‘the gay’. That one group’s inability to confront reality and end their bigotry is sufficient in these Christians’ eyes to denying another group their marriage equal rights. That a gay person’s right is inferior to a bigot’s right to not have his children be exposed to their bigotry; inferior to the point the government should protect the bigot’s right at the cost of gay people’s right to marry and have a family with the same protections others enjoy.

A proper article by a journalist when these issues are in play is to note such as plainly as I just did. Competing rights are often in play, and conservatives predominately lose on the merits when those analyses are done. Conservatives and the country lose when the media fails to point out when competing rights are in play; that also minimizes the public properly balancing the merits of each argument which has a large following. Another example is conservatives arguing against property owners serving blacks and gays, where the media always talks about these owners’ property rights without explicitly comparing those rights to the right to equal access by gays and blacks. When we compare them, conservatives lose.

Reginald Selkirk

Bork: “Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

.

Thomas Jefferson: “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.”

http://www.pandasthumb.org Area Man

“Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic.”

That is just bizarre. I don’t know how a self-described “originalist” comes up with this stuff. There is certainly nothing in the 1st amendment that would imply a limitation of free speech and press to that which was purely political. And if this was the opinion of any of the founding fathers, that’s news to me.

Perhaps most importantly, it’s nearly impossible to disentangle political from non-political speech. Is the “Hunger Games” a political book? Well, yes and no…

It seems that this is just a recipe for coming to whatever conclusion about speech that one wants; this is one non-political and not protected, this one is political but obscene and not protected, etc. Much like Biblical literalists, originalism is a means of giving divine imprimatur to one’s highly subjective interpretations.

garnetstar

Bork wrote somewhere (sorry, can’t find it) that the Court’s decision in Skinner v. Oklahoma was unjustifiable under the Constitution, since there is no right to privacy.

The decision overturned an Oklahoma law that mandated involutary sterilization (possibly by vasectomy) of people who had been convicted twice of “crimes of moral turptitude”. (It naturally did not apply to white collar criminals.)

Skinner had been convicted of armed robbery and of stealing chickens, the latter of course being the last straw.

So, really, if the Constitution doesn’t protect you from sterilization, severe curtailment of free speech is just fine and dandy too, isn’t it?

marcus

I am unfamiliar with any cases that cited the 9th amendment as the basis for a judgement. In my mind Griswold v Conneticut would have been a … Sorry just wiki-ed, Justice Arthur Goldberg did indeed cite the 9th amendment as his reason for voting to overturn Griswold. Others cited the “due process” clause of the 14th amendment. Carry on.

Michael Heath

Reginald Sellkirk:

Bork: “Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

.

Thomas Jefferson: “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.”

Provocative and initially insightful, but I think it’s important to note that Bork is noting a premise consistent with a constitutionally valid principle while Jefferson’s making a policy argument. So I think both are correct on what you quote.

Bob Bork’s correct that the exercise of rights by some infringes on the rights of others. I strongly favor Jefferson’s argument on how we should legislate while the Constitution also defends this policy argument given the 1st Amendment’s establishment clause and religious freedom clause.

Childermass

marcus @ 10:

I am unfamiliar with any cases that cited the 9th amendment as the basis for a judgement.

I am sure its influence is far greater than its citation rate.

The amendment sets up the paradigm of how to interpret all other rights. The very idea that not all our rights are listed in the Constitution is very powerful.

Childermass

Way back during the confirmation hearings, Harper’s took a page of Bork’s writings as an example of just how radical and nonconstitutional his legal views are. They did put balloons commenting on what Bork said on either side though it should have been clear to any reader, even without the commentary, just how asinine what was being said was. This is what convinced me to write my senator asking him to vote against confirmation. (Senator because the other senator was a waste of time: conservative Republican from Oklahoma.)

I find it deeply morally offensive that anyone should try to dictate what others can do with their own lives, therefore, by his own rules… Robert Bork should not be allowed to do so. Isn’t that how it works?

http://www.facebook.com/profile.php?id=523300770 stuartsmith

“No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

It’s strange how this doesn’t seem to apply when environmentalists think it’s immoral to polute, or when socialists think it’s immoral to pay people less than a living wage. In fact, moral indignation appears to carry weight only when aimed at things that actually improve people’s quality of life – any time there is any objective reason to be indignant, your indignation becomes irrelevant.

jbrock

Thank you for posting this. I should have guessed that Bork was a wackjob just by the nature of his fan club, but I had no idea how far over the edge he was.

And I used to consider myself a conservative …

930i7

Doesn’t any speech become political the minute someone tries to ban or regulate it?

http://www.stuffthatlookslikejesus.com Wesley

I am unfamiliar with any cases that cited the 9th amendment as the basis for a judgement. In my mind Griswold v Conneticut would have been a … Sorry just wiki-ed, Justice Arthur Goldberg did indeed cite the 9th amendment as his reason for voting to overturn Griswold. Others cited the “due process” clause of the 14th amendment. Carry on.

The 9th amendment has been effectively written out of the Constitution in SCOTUS doctrine, which, along with other similar abuses (ignoring the “privileges and immunities” clause of the 14th), is the main reason for such a broad and uncertain substantive due process doctrine.

It is true that 9th amendment was not-uncommonly cited in concurrences and dissents up until the ’80s, though not as actually protecting any rights. For instance, Goldberg’s concurrence in Griswold referred to the 9th amendment as the source of unenumerated “fundamental rights” protected by the 14th. But such reasoning has, to my knowledge, not been embraced by any Court majority, at least not for the past 60+ years.

Michael Heath

Wesley writes:

The 9th amendment has been effectively written out of the Constitution in SCOTUS doctrine, which, along with other similar abuses (ignoring the “privileges and immunities” clause of the 14th), is the main reason for such a broad and uncertain substantive due process doctrine.

The ‘privileges and immunities’ clause is found in Article IV, Sec. 2, not the 14th Amendment. The federal government’s obligation to increase its protection of our rights, including a reduction in state power, occurred with the ratification of the 14th Amendment, which changed the Sec. 2 clause via a change in the modifier – from “and” to “or” along withe rest of that amendment’s equal protection clause:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[emphasis added – MH]

So this isn’t merely a pedantic point; the courts are obligated to protect our rights if they discover a privilege or an immunity is in play, they no longer require that both conditions be met where I’m sure you realize this protection is now also extended against the states’ power via the 14th. [Unless of course a constitutional power restricts or prohibits that right like taxing us, or a superior competing right is in play.]

http://polrant@blogspot.com democommie

Bobby prolly finds the words, “cock”, “cunt”, “fuck” and “dick” to be deeply morally offensive and not suitable for public utterance.

I find the word, “Bork” to be deeply morally offensive and will substitue “fuckwadlyingshitheel” whenever possible.